How to Identify Marital Assets

How to Identify Marital Assets

Posted By
Law Office of Russell S. Hershkowitz, LLC

It is common knowledge that houses, cars, and dining sets are items that are equally divided during a divorce. However, does your spouse have a right to half of your business, employment benefits, or pension? The answer depends on whether those things qualify as a marital asset. This blog discusses how Florida courts identify marital assets.

Equitable Distribution

Under the Florida law, the parties presumably have an equal interest in marital assets. As a result, marital assets are distributed equally between the parties, unless one of them can demonstrate to the court why a deviation from such a division is fair.

A marital asset includes property that the parties acquire or otherwise receive while they are married. Under Florida law, property acquired after the earliest of the following dates does not constitute marital property:

The date the parties entered into a valid separation agreement;

The date expressly established by a separation agreement; or

The date of the filing of a petition for divorce.

Equitable distribution is a default standard in Florida. As a result, if the parties agree to distribute property according to their own terms, their agreement will supersede the presumed equitable distribution of marital assets.

Gifts

A gift from one spouse to the other (Interspousal gifts) is considered to be a marital asset. For example, if a husband buys a car for his wife, then the husband has an interest in half of the car at divorce.

To determine whether a transfer of property between spousal constitutes an Interspousal gift, a party must demonstrate:

Donative intent. The spouse giving the purported gift must not expect something in return.

Delivery or possession. The receiving spouse must have physical possession of the gift.

Surrender of control. The gifting spouse must not retain any legal right of ownership or control over the gift.

While Interspousal gifts are considered marital property, noninterspousal gifts from another party are deemed to be nonmarital property. For example, if a wife’s grandparents pass away leaving $250,000 in her name only, the inheritance is considered to be the wife’s separate property.

Business Interests

If one spouse owned a business before getting married, the other spouse only has a partial interest in the value of that business. The non-owner spouse’s interest begins from the date of the marriage until the time of separation. The accounts receivable of a business may also constitute a marital asset.

Enhanced Value in Nonmarital Assets

When the value of a nonmarital asset increases due to the efforts or contributions of the other spouse, the increased value is considered a marital asset. For example, imagine that a wife’s parents pass away and leave her a $250,000 lake house in the mountains. If both the husband and wife invest in renovations that increase the lake house’s value from $250,000 to $300,000, then $50,000 of the lake house’s equity is considered a marital asset.

Employment Benefits

In general, both vested and nonvested benefits which accrue during marriage are considered marital property. Thus, certain employment benefits are considered to be marital assets, including:

The cash value of unused paid time off if the employment agreement allows the employee to cash out such time off

Unvested stock options from an employer

Severance pay

Retirement & Pension

Retirement and pension benefits are considered marital property to the extent that any contributions were made using marital assets. A spouse can either get the present value of their interest in a pension plan as an offset to the other spouse’s portion, or they can receive their share of the plan when benefits become payable.

Section 185.25 of Florida’s Statutes bars a court from ordering the administrator of a municipal pension plan to pay benefits to the ex-spouse of a municipal employee per a valid marital settlement agreement.

Additionally, the former civilian spouse of a military service member may receive 50% of their military retirement benefits at divorce. However, veterans benefits based on disability are not considered marital property but may qualify for garnishment to satisfy an award for spousal or child support.

Get Quality Divorce Representation

If you are going through a divorce, you should hire the services of an Altamonte Springs divorce attorney to ensure your rights to marital property are adequately protected. At the Law Office of Russel S. Hershkowitz, LLC, we have experience handling a variety of family law matters, including property division at divorce. We are dedicated to advocating for your best interests to make sure you receive your fair share of marital assets under Florida law.

To schedule an appointment with our distinguished divorce attorney, call the Law Office of Russel S. Hershkowitz, LLC at (407) 753-4111 or contact us online.